As politics flare, judicial appointments take a 'recess'

It's an election year, but the unprecedented partisan furor also reflects a constitutional debate and key role of courts.

The Bear River Band had never taken a stand on a US judicial nomination, not until William Myers - who once approved mining on lands deemed sacred to another native American tribe - was nominated for a lifetime appointment to the federal bench.

"There are some things done to some tribes [to which] the rest of us just say, 'Oh no!' " says tribal vice-chairwoman Janice McGinnis in Loleta, Calif.

So, knowing nothing more about Mr. Myers, she signed off on a protest letter to the Senate Judiciary Committee. Some 175 groups have signed similar letters to derail President Bush's nomination of the former Interior Department solicitor general to the Ninth Circuit Court of Appeals - a sign of how deeply outside groups are engaging in Senate confirmations.

Although the Myers nomination cleared the Senate Judiciary Committee on a party-line vote last week, it will run into a full-court filibuster when it hits the floor of the Senate, as early as this week. In fact, Senate Democrats say all Bush nominations will be blocked, unless the White House agrees to stop making "recess appointments," done during congressional breaks to bypass Senate confirmation.

The season of gridlock came early to Capitol Hill this spring. In a normal political cycle, presidents usually have until the summer to get judicial nominations through the Senate. The window is closing early this year due to the intense politicization of the process, and the perception that courts are, if anything, an increasingly important branch of government.

"The future of the federal judiciary is the single most important domestic issue facing America, and the next eight months could determine what the law of the land will be for 20 or 30 years," says Ralph Neas, president of People for the American Way, which has taken a lead in organizing opposition to Bush judicial nominations. "That's why we take it so seriously."

Indeed, while the partisan logic of obstruction is present on other issues from welfare reform to the budget, courts are the big flash point. "The Democrats are trying to rev up their base by turning [judicial nominations] into a mano a mano confrontation," says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst.

The Senate has confirmed 173 of the president's judicial nominees, but three have been rejected by Democrats who said they were "outside the mainstream" and "had troubling records of judicial activism in service to extreme ideology."

In response, Bush invoked his constitutional power to make recess appointments to put two of these nominees on the federal bench: Charles Pickering to the Fifth Circuit Court of Appeals and William Pryor to the Eleventh Circuit. Unlike nominees confirmed by the Senate, recess appointees hold their positions only until a new Senate session begins.

Democrats say the move is unprecedented: "At no point has a president ever used a recess appointment to install a rejected nominee on to the federal bench. And there are intimations that there will be even more recess appointments in the coming months," said Senate Democrat leader Tom Daschle. Unless the White House agrees not to make more recess appointments, he said there will be no cooperation on nominations.

The current dispute over recess appointments reopens a longstanding tension in the Constitution between the Senate's responsibility to advise and consent on judicial nominations and the provision for flexibility on appointments when the Senate is not in session.

In fact, the use of recess appointments for judicial nominations was widely practiced up until the 20th century. "There have been some 300 recess appointments to the federal bench since George Washington's time," says Louis Fisher of the Congressional Research Service.

After President Eisenhower used recess appointments to seat three Supreme Court justices, the Senate passed a nonbinding resolution urging the president to not do so again. This held until President Carter's proposed Walter Heen for a district judgeship in Hawaii on a recess appointment in 1980. The Carter Justice Department argued that recess appointments to the federal bench were an "accepted practice."

The practice revived again in the closing days of the Clinton administration, when the president named Roger Gregory on a recess appointment to the Fourth Circuit. "President Clinton opened the door,," says Mr. Fisher. "Now, it's up to the two branches to find accommodation."

Now, that struggle could bring judicial nominations to an early halt in the US Senate, as outside groups promise to continue the epic battle over the issue.

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